10/14/2018

Barry McDonald on Judicial RestraintMichael Ramsey

If you paused during the heated battle over Brett Kavanaugh’s Supreme Court nomination to ask yourself whether it made any sense for the appointment of one individual to one position in our government to matter so much, let me assure you: The answer is no. It doesn’t make any sense.

Why did Justice Kavanaugh’s confirmation matter so much? Because the Supreme Court has come to matter so much — indeed, because it has come to matter too much. The court has become a political actor that wields excessive power in our democracy. The uproar over the Kavanaugh hearings was, at bottom, a reflection of that unfortunate fact.

Americans have become so used to having the Supreme Court decree the country’s policy on such vital matters as abortion, gun rights, same-sex marriage and campaign finance that they assume this is how the court is supposed to function. But that assumption is mistaken.

Our nation’s founders would blanch to see how different the court is today from their conception of it. Only if we can figure out how to restore the Supreme Court to its intended role can we avoid a future in which a court nomination continues to be capable of tearing our country apart.

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What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).

And from later on:

Yet in 1958, in the face of defiance by Southern states of its 1954 ruling in Brown v. Board of Education requiring the desegregation of public schools, the Supreme Court declared that it was the “supreme” interpreter of all things constitutional in our system. Forgetting the court’s confessed sins during the pre-New Deal era, the more liberal members on the court started inferring rights in the Constitution based again on vague notions of due process “liberty.”

First there was an inferred right of contraceptive freedom. Then there was an inferred right of abortion, then of sexual privacy and then of same-sex marriage. Not to be outdone, the more conservative justices on the court, drawing on the First and Second Amendments, have discovered a personal right to have guns, a corporate right to spend unlimited money in American elections and, just this past summer, a worker’s right to not help pay for collective bargaining by a union.

When such vital matters of social policy are determined by a handful of unelected justices and their interpretations of malleable terms like “liberty” and “free speech,” the American people are robbed of their ability to have a say about the rules that dictate how they live. One way or another, the Supreme Court needs to recover the founders’ vision of its modest role in our system of self-government. When it is not clear to justices of both ideological stripes that the Constitution requires a ruling that will have major public policy implications, the court should leave it to the people to decide for themselves.

This is a powerful brief for judicial restraint. Unlike a number of reflexive liberal turns to judicial restraint after Justice Kavanaugh's confirmation, Professor McDonald acknowledges that true embrace of judicial restraint requires rejection of a large part of left-liberal constitutionalism of the past 50 years. I have three quick comments.

First, I'm not sure about the originalist foundations of this argument. Perhaps the framers' test was that courts should rule only against laws and executive actions only when the Constitution was "clearly transgressed." But the early federal courts, including the Marshall Court ruled against the political branches and especially the states a fair amount, and there's a fair amount of founding era commentary about courts policing the constitutional boundaries of government. Very strong judicial restraint as a consequence of originalism remains, I think, unproven.

Second, although Professor McDonald commendably lists a number of cases from both sides of the political spectrum he thinks are problematic, he avoids the really hard ones. What does he think about Brown v. Board, Loving v. Virginia, West Virginia v. Barnette, and similar interventionist but widely accepted (by both sides) cases? These are the biggest challenges for judicial restraint.

Third, there have been a number of post-Kavanaugh proposals to limit the power and role of the Court. Judicial restraint seems to me to imply this one: an amendment declaring that the Court shall not find any actions of the state or federal executive or legislative branches unconstitutional absent a supermajority vote (of 6 or maybe 7 of 9 Justices). My guess is that most people -- perhaps even most people who say they favor judicial restraint -- would not favor this rule. But it would be a way to test the depth of commitment to the project of scaling back the Court's power.